The great judge Learned Hand once said, "The spirit of liberty is the spirit which is not too sure that it is right." If so, the tobacco regulation bill recently passed by Congress indicates that the spirit of liberty is even scarcer than usual in the halls of government.
What motivates advocates of stricter tobacco regulation is the unassailable assurance that they are not only completely right but that their opponents are a) wrong and b) evil. This invigorating certitude makes it possible to justify almost anything that punishes cigarette companies, even if it does no actual good -- or does actual harm.
One of the main purposes of the new law is to reduce the number of smokers in the name of improving "public health." This is a skillful use of language to confuse rather than enlighten.
An individual decision to take up cigarettes is a private event, not a public one, and its health effects are almost entirely confined to the individual making the choice. Swine flu warrants government intervention because it is transmitted to people without their consent. Not so with tobacco addiction.
That's not the only Orwellian touch in this measure. It is called the "Family Smoking Prevention and Tobacco Control Act," which raises the obvious question: What does "family" have to do with it? Answer: nothing, but doesn't it sound sweet?
Like many intrusive government actions, this law is supposed to protect children. That's the pretext for telling tobacco companies, in exhaustive detail, how and where they can communicate with consumers, actual and potential -- allegedly to prevent the contamination of young minds.
So: Cigarette makers are forbidden to use color in ads in any publication whose readership is less than 85 percent adult. They are barred from using music in audio ads. They are not allowed to use pictures in video ads. They may not put product names on race cars, lighters, caps or T-shirts. From all this, you almost forget the fleeting passage in the Constitution that says "Congress shall make no law … abridging the freedom of speech."
When it gets in a mood to regulate, Congress doesn't like to trouble itself with nuisances like the First Amendment. In 2001, the Supreme Court ruled it was unconstitutional for Massachusetts to ban outdoor ads within 1,000 feet of any schools and playgrounds. So what does this law do? It bans outdoor ads within 1,000 feet of schools and playgrounds.
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